Cheaper and faster dispute resolution through the courts is the promise being held out by two trials currently under way in the Technology and Construction Court (TCC).
The Shorter Trials Pilot Scheme (STS) and the Flexible Trials Pilot Scheme (FTS) started on 1 October for claims issued on or before that date, and are to run for two years.
The costs and time involved in going to court with disputes mean that only the most intractable cases or the most stubborn parties will choose that route. Arbitration can be bogged down so much that some parties in recent years have concluded that going to court might have been cheaper and quicker; the RICS has recently launched a fast track arbitration service after members reported their frustration. Adjudication decisions have always been regarded as somewhat arbitrary and a cheaper and faster litigation route will no doubt attract eager supporters.
The trial schemes are designed to overcome the cost and delay of full litigation while avoiding at least some of the shortcomings of alternatives. The most radical new ideas are in the Shorter Trials Pilot Scheme. This route can be chosen for cases where a lot of detailed and possibly conflicting expert witness evidence isn’t likely to be a feature. Cases involving expert evidence can still take the STS route as long as the evidence is confined to a relatively narrow area.
Trials are to start within 10 months of the start of proceedings and have to be completed within four days. Cases involving multiple parties may not use the STS, which might disappoint many potential users.
Benefits include having all proceedings heard by the designated judge where possible, which should help speed things up as by the time a case comes to trial the judge should be familiar with the case. Disclosure of documents will be limited and particulars of claim and the defence and counterclaim must not exceed 20 pages.
The courts are increasingly interested in keeping the costs of litigation down so have introduced cost budgeting and management, but as the STS route is expected to be cheaper these procedures will not be adopted under it, unless the parties request it.
The FTS focuses on controlling the amount of material involved in disclosure and evidence. Industry reaction so far seems to be that the STS could be a useful way to get some disputes settled faster than they would otherwise be by a court. Not allowing cases involving multiple parties is perhaps a disappointment, but success of the pilot might result in some relaxation on that score. Or perhaps not. That is the point of a pilot scheme, to see what works and what doesn’t and what could perhaps be made to work by a different way of doing things.
The big question is of course whether the industry in fact wants a fast track process. Various fast track procedures have been tried in the past – the Society of Construction Arbitrators’ 100 day procedure, for example – but have not exactly taken over the disputes world. For simpler cases the answer is probably yes, so the STS could quickly gain support, without necessarily pointing the way forwards for more intractable or larger disputes involving counter claims and in depth expert evidence.
Nick Barrett
Editor